IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

December 1, 2009 Session

BOBBY GERALD RILEY, and Wife, TANYA RILEY, Individually and as

next of kin for HUNTER RILEY

 v. 

JAMES ORR

Appeal from the Circuit Court for Marshall County

No. 17708 Lee Russell, Judge

No. M2009-01215-COA-R3-CV - Filed June 11, 2010

This is an appeal of a jury verdict. The plaintiff was hunting with his son. The defendant

was also hunting in the general area, and accidentally shot the plaintiff. The plaintiff filed

a lawsuit against the defendant for negligence, and included a claim for negligent infliction

of emotional distress on behalf of his son. The parties stipulated as to the defendant’s

liability, and a jury trial was held on the issue of damages. The jury instructions included

instructions on the plaintiff father’s mental pain and suffering and the son’s emotional injury,

but did not separately address the plaintiff father’s emotional injury. After deliberating, the

jury returned a verdict awarding damages to the plaintiff father as well as an award for the

son’s emotional injury. The trial court denied the defendant’s motion for a new trial and

approved the verdict. The defendant now appeals. On appeal, the defendant challenges the

sufficiency of the evidence supporting the verdict on several elements of damages, and

argues that the inconsistency in the jury instructions on emotional injury necessitates a new

trial. We affirm in part, vacate in part, suggest remittitur as to the awards for future medical

expenses and for emotional injury, and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in

Part, Vacated in Part, Remittitur Suggested, and Remanded

HOLLY M. KIRBY, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and J. STEVEN STAFFORD, J., joined.
William Ritchie Pigue and Matthew C. Pietsch, Nashville, Tennessee, for the appellant,

James Orr

Walter W. Bussart and Lee Bussart Bowles, Lewisburg, Tennessee, for the appellees, Bobby

Gerald Riley, Tanya Riley, and Hunter Riley

OPINION

FACTS AND PROCEEDINGS BELOW

On April 8, 2007, Plaintiff/Appellee Bobby Gerald Riley (“Gerald Riley” or “Riley”) went

turkey hunting with his teenage son, Hunter Riley, on land in Marshall County, Tennessee.

At the same time, Defendant/Appellant James Orr (“Orr”) was turkey hunting in the same

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general vicinity.

Firing his twelve-gauge shotgun at what he believed to be a turkey, Orr accidentally shot

Gerald Riley, peppering him from head to thigh with shotgun pellets. Some of the pellets

bounced off Riley’s heavy clothing, but some of the pellets lodged in his right pointer finger,

right upper thigh, right temple, left ring finger and right forearm. None of the shotgun pellets

struck son Hunter Riley, although some came close.

After firing the shot, Orr approached the scene and discovered that he had struck Gerald

Riley. He first checked to make sure that Hunter Riley had not been injured and then

retrieved his vehicle and transported Gerald Riley to the hospital. Meanwhile, on Gerald

Riley’s instruction, Hunter Riley returned home to tell his mother, Plaintiff/Appellee Tanya

Riley, what had happened.

At the hospital, Gerald Riley was treated for his wounds. Riley stayed overnight at the

2

hospital and returned home the next day. While recuperating, he missed one week of work.

At all times pertinent, Gerald Riley was employed as a warehouse manager at a furniture

store and earned ten dollars per hour. Riley used accrued vacation time in order to receive

pay for that week.

Orr is represented by a different attorney on appeal than the attorney who represented him at trial. 1

It is unclear whether Riley had any of the shotgun pellets removed in the emergency room. At the time of 2

trial, pellets remained lodged near Riley’s right temple and in his right pointer finger, left ring finger, right

thigh, and one of his wrists.

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On September 12, 2007, Gerald and Tanya Riley (collectively, “the Rileys”) filed the instant

lawsuit against Orr, asserting claims for negligence. Gerald Riley sought $500,000 in

damages for, inter alia, medical expenses, loss of earnings, pain and suffering, mental

anguish, and physical disfigurement. Tanya Riley sought $50,000 in damages for loss of

consortium.

In his answer, Orr admitted that he had unintentionally shot Gerald Riley. Subsequently, the

Rileys amended the complaint to add son Hunter Riley as an additional plaintiff, asserting

a claim for negligent infliction of emotional distress; they sought $150,000 in damages for

this claim. Discovery ensued and the case was set for a jury trial. Prior to trial, the parties

stipulated as to Orr’s liability, leaving only the issue of damages for trial.

The jury trial was held on January 12, 2009. The jury heard live testimony from Gerald

Riley, Tanya Riley, and Hunter Riley, as well as Jennifer Harris (“Counselor Harris”), a

licensed counselor who had examined the Plaintiffs prior to trial. The jury also viewed the

videotaped deposition of Andrew W. Sisk , M.D. (“Dr. Sisk”), the general surgeon to whom

Riley was referred as to removal of the remaining shotgun pellets. Nine exhibits were

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entered into evidence, including Gerald Riley’s medical bills and Dr. Sisk’s estimate of the

cost for removing the pellets that remained lodged in Gerald Riley’s body.

In his testimony, Gerald Riley described the shooting incident, the treatment he received, and

how the incident had affected his life. In the emergency room, an x-ray was taken, he said,

which revealed that shotgun pellets were lodged near his right temple, in his right pointer

finger, his right forearm, his left ring finger, his right thigh, and one of his wrists. Riley said

that the emergency room physicians were concerned about the pellet in his right thigh

because it was lodged near a main artery. However, the emergency room doctors ultimately

referred him to Dr. Sisk for removal of the pellets. In his estimate, Dr. Sisk contemplated

removing five pellets that remained lodged in Gerald Riley’s body. In his testimony, Riley

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explained that he missed a week of work while recuperating from his injuries, but used $525

in accrued vacation to avoid missing a pay check.

Prior to the shooting incident, Riley said, he was an active person and had no trouble doing

his job, which involved very physical work and heavy lifting. Since returning to work, Riley

is able to perform his job, but has to take regular breaks from lifting furniture because the

pellet that remains in his wrist triggers “unnerving pain.”

The record does not contain a transcript of the deposition of Dr. Sisk. 3

Riley testified that Dr. Sisk would not be able to remove the pellet in his thigh because it was lodged too 4

close to the artery.

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His injured leg often cramps up, he said, and he feels “antsy” and is unable to sit for long

periods of time without standing up. He testified that he can no longer play guitar for

extended periods of time because doing so makes his “hand hurt[] almost like arthritis.”

Riley commented: “[I]t is kind of aggravating when you are taken from your daily life, and

you want to do things that you normally do and you are kept from that.” Riley said that the

recurring pain caused by the pellets that remain in his body cause him to lose patience more

quickly than before the incident, and inject additional stress into his relationship with his

wife.

In his testimony, Gerald Riley acknowledged that Dr. Sisk had estimated that removal of the

remaining pellets would cost between $1825 to $2250. He explained that he could not

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afford to have the remaining pellets removed because he is the sole provider for his wife and

their five children. Riley said that he is willing “to endure some things” and “go without

certain things” to provide for them.

In her testimony, Tanya Riley said that the shooting incident had left her husband “not as

patient, [and] kind of distant” from her. She said that this in turn caused her to distance

herself from him. She testified that her husband now sometimes withdraws from their family

and involves himself in “single activities.” As to his lingering pain and physical effects, she

said that he can no longer pick up their younger children without pain in his wrist, and

walking for long periods of time causes him to complain of pain in his leg. Tanya Riley

testified that Gerald Riley sometimes moans and rolls over in bed due to the pain.

In his testimony, son Hunter Riley said that some of the shotgun pellets fired by Orr nearly

hit his head, striking the tree he was leaning against at the time. When he saw his father

bleeding after being shot, Hunter said, he was frightened, and afterward had nightmares.

Corroborating Gerald Riley’s testimony on the lingering effects of the incident, Hunter said

that his father cannot run as well as he previously could when they play football in the yard,

and said that his father gets “agitated a little faster than usual,” even if he and his siblings are

not “doing anything wrong.”

Counselor Harris was the last witness to testify at trial. She met with Gerald, Tanya and

Hunter Riley for about an hour, approximately one month before trial. In the meeting, she

noted that Gerald Riley manifested several symptoms of stress and anxiety. She explained

In his closing argument, the Rileys’ attorney noted that there will be hospital and other charges associated 5

with the future removal of the remaining pellets, but acknowledged that they had put no proof in the record

as to the cost of such hospitalization and other expenses.

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that he did not meet the criteria for a diagnosis under the Diagnostic Statistical Manual, but

6

commented that “there is a significant impairment in his daily living.” Harris said that she

tries to reserve her opinion to what is stated in the Diagnostic Statistical Manual. Harris

declined to estimate the amount of counseling Gerald Riley might want to have, but stated

that she charges seventy-five dollars per session.

Regarding Hunter Riley, Counselor Harris testified: “[H]e is dealing with the incident in his

own way. His response is not inappropriate. He has chosen not to go into it basically. He

has occupied himself. In our session he stressed how he was very busy doing regular teenage

activities.” She said that Hunter Riley had “not report[ed] any clinically significant

impairment.”

At the conclusion of the testimony, the trial court charged the jury. The charge consisted of

nearly twenty pages of jury instructions. With regard to Gerald Riley’s claim for damages

for pain and suffering, the jury instruction provided:

Plaintiff shall be awarded the following elements of damage experienced in the

past:

Physical pain and suffering

Mental or emotional pain and suffering

Loss of capacity for the enjoyment of life

Disfigurement

You shall also award compensation for the present cash value of:

Physical pain and suffering

Mental or emotional pain and suffering

Loss of capacity for the enjoyment of life

Disfigurement

reasonably certain to be experienced by a party in the future.

Pain and suffering encompasses the physical discomfort caused by an

injury. Mental or emotional pain and suffering encompasses anguish, distress,

fear, humiliation, grief, shame or worry. . . .

With regard to Hunter Riley’s claim for damages for emotional injury, the instruction read:

She described the Diagnostic Statistical Manual as follows: 6

The Diagnostic and Statistical Manual, 4th Edition, Third Revision, is the manual used

primarily by insurance companies to decide on how much treatment a client can have. There

are a multitude of disorders ranging from personality to mental, grief, bereavement, all of

those things are accounted for in the DSM-IV.

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Plaintiff Hunter Riley claims damages for serious or severe emotional

injury. A serious or severe emotional injury occurs when a reasonable person,

normally constituted, would be unable to adequately cope with the mental

stress caused and brought about by the circumstances of the case. Such serious

or severe emotional injury must be supported by expert medical or scientific

proof.

After the charge was read, the jury retired to deliberate. About an hour later, the jury

returned with the verdict form completed as follows:

BOBBY GERALD RILEY, JR.:

a. Medical Expenses - Past $2,405

b. Medical Expenses - Future $8,000

c. Lost Earning Capacity - Past $1,000

d. Permanent Disfigurement $1,000

e. Pain and Suffering - Past $50,000

f. Pain and Suffering - Future $1,000

g. Loss of Ability to Enjoy Life - Past $50,000

h. Loss of Ability to Enjoy Life - Future $1,000

i. Emotional Injury $35,000

TOTAL DAMAGES $149,405

TANYA RILEY:

j. Spousal damages $3,500.00

HUNTER RILEY:

k. Emotional Injury $1,000.00

On January 22, 2009, the trial court entered an order on the jury verdict and awarded a

judgment to the Rileys in the amounts listed on the verdict form.

Thereafter, Orr filed a motion for a new trial on the following grounds:

c. The “Proposed Jury Verdict Form” contains the separate category of

“Emotional Injury” among the types of damages available for Bobby Gerald

Riley. For Mr. Riley, “emotional pain and suffering” were among the elements

of “Personal Injury - Pain and Suffering.” (TPI Civil 14.10) The “Proposed

Jury Verdict Form” was plainly inconsistent with the jury instructions and

resulted in the duplication of award.

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d. The jury’s verdict is beyond the range of reasonableness and should be setaside if not reduced by this Court’s suggestion of remittitur.

e. The cumulative affect of these errors require that this Court grant the

Defendant a new trial.

After a hearing, the trial court entered an order denying the motion on all grounds. In the

order, the trial court found that the “jury’s verdict [was] within the range of reasonableness

under the evidence” and explicitly approved the verdict. Orr now appeals.

ISSUES ON APPEAL AND STANDARD OF REVIEW

On appeal, Orr raises the following issues:

1) Whether the trial court erred by refusing to suggest a remittitur, or in the

alternative, to order a new trial, for a verdict that was so excessive as to

indicate passion, prejudice or caprice.

2) Whether the trial court erred by providing the jury with a verdict form that

was in conflict with the jury instructions that led to a duplicative damage

award.

Since this case was tried by jury, findings of fact may be set aside “only if there is no material

evidence to support the verdict.” TENN. R. APP. P. 13(d). In determining whether there is

material evidence to support the verdict, this Court must “(1) take the strongest legitimate

view of all the evidence in favor of the verdict; (2) assume the truth of all evidence that

supports the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4) discard

all [countervailing] evidence.” Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704

(Tenn. 2000) (citing Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn.

1978); Black v. Quinn, 646 S.W.2d 437, 439-40 (Tenn. Ct. App. 1982)). In doing so, this

Court is prohibited from reweighing the evidence or making a fresh determination of where

the preponderance lies on issues of fact. Id. Simply put, if there is any material evidence

supporting the jury’s verdict, then the findings of fact must be affirmed. Id. (quoting

Crabtree Masonry Co., 575 S.W.2d at 5).

In contrast, the trial court’s conclusions of law are subject to a less deferential

standard of review. Rutherford v. S. Coll. of Optometry, No.W2008-02268-COA-R3-CV,

2009 WL 5064972, at *4 (Tenn. Ct. App. Dec. 28, 2009), no perm. app. This Court reviews

the trial courts conclusions of law de novo with no presumption of correctness. Id. (citing

Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696-97 (Tenn. 2002)).

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Regarding remittitur of a jury verdict, statutory provisions outline the authority of both the

trial court and this Court. Tennessee Code Annotated § 20-10-102 provides:

(a) In all jury trials had in civil actions, after the verdict has been rendered and

on motion for a new trial, when the trial judge is of the opinion that the verdict

in favor of a party should be reduced and a remittitur is suggested by the trial

judge on that account, with the proviso that in case the party in whose favor

the verdict has been rendered refuses to make the remittitur, a new trial will be

awarded, the party in whose favor such verdict has been rendered may make

such remittitur under protest, and appeal from the action of the trial judge to

the court of appeals.

(b) The court of appeals shall review the action of the trial court suggesting a

remittitur using the standard of review provided for in T.R.A.P. 13(d)

applicable to decisions of the trial court sitting without a jury. If, in the opinion

of the court of appeals, the verdict of the jury should not have been reduced,

but the judgment of the trial court is correct in other respects, the case shall be

reversed to that extent, and judgment shall be rendered in the court of appeals

for the full amount originally awarded by the jury in the trial court.

T.C.A. § 20-10-102 (2009). Tennessee Code Annotated § 20-10-103 provides further:

If the judgment of the trial court with regard to a remittitur is affirmed in the

court of appeals, so that a party is required to make a remittitur or suffer a new

trial, as in the judgment of the trial court, or if, by the opinion of the court of

appeals, a further or a larger remittitur is required of the party in whose favor

the verdict was rendered, or if after the case was tried in the lower court by the

trial judge without a jury, or if after the case was tried in the lower court with

a jury and no remittitur was suggested by the trial judge, a remittitur is first

suggested or required in the court of appeals, on penalty of granting a new

trial, then in each and all of these events the party in whose favor the verdict

or judgment has been rendered may make the remittitur under protest in the

court of appeals, and take the case, by application for permission to appeal, for

review upon that point, to the supreme court.

T.C.A. § 20-10-103(a) (2009).

Thus, the trial court may approve the verdict, or the trial court may suggest remittitur if it

determines that the jury verdict is excessive. Dunn v. Davis, No. W2006-00251-COA-R3-

CV, 2007 WL 674652, at *9 (Tenn. Ct. App. Mar. 6, 2001), no perm. app. (citing Coffey v.

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Fayette Tubular Prods., 929 S.W.2d 326, 331 (Tenn. 1996)). We review the trial court’s

decision on the issue of remittitur under the standard of review set forth in Rule 13(d) of the

Tennessee Rules of Appellate Procedure. Id. (citing Coffey, 929 S.W.2d at 331); see Ellis

v. White Freightliner Corp., 603 S.W.2d 125, 129 (Tenn. 1980) (“The trial judge’s approval

of a jury verdict invokes the material evidence rule with respect to all other issues of fact and

we know of no reason why that rule should not have the same effect when that approval

includes the amount of the award.”).

However, “when the question of remittitur is raised, the Court of Appeals has the duty

to review the proof of damages and the authority to reduce an excessive award.” Ellis, 603

S.W.2d at 129; see T.C.A. § 20-10-103(a) (2009). The authority of the appellate court,

however, is more circumscribed than the authority of the trial court with respect to remittitur:

Where the trial court, in its role as thirteenth juror, has approved a jury verdict,

that verdict will not be disturbed where there is any material evidence to

support it. We must, therefore, review the evidence in this case to determine

whether material evidence supports a finding that the jury award is within the

range of reasonableness and not excessive.

Dunn, 2007 WL 674652, at *9 (citations omitted).

ANALYSIS

Jury Instructions

We first consider Orr’s argument that the jury was provided with a verdict form that

conflicted with the jury instructions, leading to a duplicative damage award for Gerald Riley.

Orr emphasizes that mental pain and suffering is a separate and distinct category of damages

from emotional injury. He contends that the award to Gerald Riley for both types of damages

is erroneous because the jury only received an instruction with respect to his mental pain and

suffering, not his emotional injury. Given the inconsistency between the instructions and the

verdict form, Orr asserts that the jury had only two options: “(1) to award a type of damage

that they were not instructed to consider or (2) to duplicate a damage award previously

included under another category.”

“Jury instructions must be correct and fair as a whole, although they do not have to be perfect

in every detail. Upon review, we read a trial court's instructions to the jury in their entirety

and in context of the entire charge.” Goodale v. Langenberg, 243 S.W.3d 575, 584 (Tenn.

Ct. App. 2007) (citing Wielgus v. Dover Indus., Inc., 39 S.W.3d 124, 131 (Tenn. Ct. App.

2000)) (citations omitted). With respect to Gerald Riley’s mental pain and suffering, the jury

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was instructed: “Mental or emotional pain and suffering encompasses anguish, distress, fear,

humiliation, grief, shame or worry.” In reference to Hunter Riley’s emotional injury, the jury

was instructed: “A serious or severe emotional injury occurs when a reasonable person,

normally constituted, would be unable to adequately cope with the mental stress caused and

brought about by the circumstances of the case.” Therefore, the jury in fact received

appropriate instructions as to both types of damages. We agree that, in light of the distinction

made on the jury verdict form, the jury instructions were less than ideal; however, jury

instructions must be read in their entirety and need not “be perfect in every detail.” Id.

(citing Weilgus, 39 S.W.3d at 131). Under the circumstances of this case, we find no

reversible error in the jury instructions and the verdict form.

Damage Amounts

Orr also argues that the trial court erred in approving the jury verdict because the awards

were so excessive as to indicate passion, prejudice or caprice, necessitating remittitur or a

new trial. Citing Grant v. Louisville & N. R. Co., 165 S.W. 963 (Tenn. 1914), Orr contends

that a court may infer the existence of passion, prejudice or caprice solely from an excessive

verdict. In particular, Orr submits that there is no material evidence supporting the following

components of the damages awarded to Gerald Riley: $8000 for future medical expenses,

$1000 for past lost earnings, $50,000 for past loss of ability to enjoy life, and $35,000 for

emotional injury. Additionally, Orr contends that there is no requisite medical or scientific

proof supporting the $1000 award for emotional injury to Hunter Riley.

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Orr contends that the $8000 award for future medical expenses is not supported by material

evidence because the only proof of reasonably certain future medical expenses is Dr. Sisk’s

estimate that removal of the remaining pellets would cost between $1825 and $2250. In

response, Gerald Riley pointsto Counselor Harris’stestimony, asserting thatshe testified that

counseling would help him cope with the stress and anxiety issues he has experienced due

to the incident, and that she charges seventy-five dollars per session. He argues that this

testimony constitutes a sufficient basisfor the jury to make a reasonable estimate of damages.

While “damages need not be proven with mathematical precision, the proof of damages must

be concrete and definite enough to enable the trier-of-fact to make a reasonable assessment

of the claimant’s damages.” Henley v. Amacher, No. M1999-02799-COA-R3-CV, 2002 WL

100402, at *11 (Tenn. Ct. App. Jan. 28, 2002) (citing Provident Life & Accident Ins. Co. v.

Globe Indemn. Co., 3 S.W. 2d 1057, 1058 (Tenn. 1928); Airline Constr., Inc. v. Barr, 807

Orr does not dispute that a personal injury plaintiff in Tennessee may be entitled to an award for these 7

categories of damages, but rather challenges the sufficiency of the evidence supporting the damages in each

category. 

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S.W.2d 247, 274 (Tenn. Ct. App.1990)). The jury is not permitted to speculate because

“damages for future medical expenses may not be awarded when the damages are based on

speculation or conjecture.” King v. General Motors Corp., No. M2004-00616-COA-R3-CV,

2005 WL 3508016, at *6 (Tenn. Ct. App. Dec. 22, 2005), perm. app. denied Aug. 21, 2006

(citing Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App.1999)). In this case,

the only estimate of Gerald Riley’s future medical expenses was provided by Dr. Sisk.

Surprisingly, the record contained no proof at all of other expenses related to the removal of

the remaining pellets, such as hospitalization.

Although Riley argues that Counselor Harris testified that he needed further psychological

counseling, he points to no place in the record supporting this assertion, and we have found

none. Harris testified that Gerald Riley did not meet the criteria for a diagnosis. She said

only that he had a “significant impairment” and that she charges seventy-five dollars per hour

for counseling. She did not say that he would benefit from counseling in the future and

specifically declined to estimate the amount of counseling he would have if he chose to do

so. We must conclude that the only material evidence in the record on Gerald Riley’s future

8

medical expense is Dr. Sisk’s estimate, which would support an award of no more than

$2250 for future medical expenses.

Orr next contends that the $1000 award to Gerald Riley for past lost earning capacity is not

supported by material evidence because Gerald Riley testified that he did not lose any income

due to the incident. In response, Riley emphasizes that a loss of earning capacity does not

necessarily equate to a loss of wages. He contends that his testimony regarding the physical

limitations that the incident imposed on him supports the award.

We agree. “Damages for lost earning capacity are measured not by the amount of the

plaintiff's lost wages but by the extent of impairment to the plaintiff's ability to earn a living.”

Graves v. Jeter, No. W2003-02871-COA-COA-R3-CV, 2004 WL 3008871, at *4 (Tenn. Ct.

App. Oct. 11, 2004) (citing Terminex Int'l Co. Ltd. P’ship v. Tenn. Ins. Guar. Ass'n, 845

S.W.2d 772, 777 (Tenn. Ct. App. 1992); Dingus v. Cain, 406 S.W.2d 169, 171 (Tenn. Ct.

App. 1966)). We find that Gerald Riley’s testimony supports the $1000 award for lost past

earning capacity.

Orr next contends that the $50,000 award for past loss of ability to enjoy life is not supported

by material evidence. Orr asserts that the only pertinent proof on this element of damages

In response to a question fromthe Plaintiffs’ counsel, Harris dutifully agreed that the opinions she expressed

8

were “within a reasonable degree of medical certainty.” This recitation does not mean, however, that the

opinions themselves were sufficient to constitute material evidence to support the monetary award of

damages.

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was testimony that Gerald Riley had diminished endurance for playing guitar and that he

could not run as well as he could prior to the incident. In response, Riley points to the

testimony that he is an active person and that the injuries from the incident inhibit him on a

daily basis.

“Damages for loss of enjoyment of life compensate the injured person for the limitations

placed on his or her ability to enjoy the pleasures and amenities of life.” Overstreet v.

Shoney's,Inc., 4 S.W.3d 694, 715-16 (Tenn. Ct. App. 1999) (citing Thompson v. Nat’l R.R.

Passenger Corp., 621 F.2d 814, 824 (6th Cir. 1980); Martin v. S. Ry., 463 S.W.2d 690, 691

(Tenn. 1971); Mariner v. Marsden, 610 P.2d 6, 12 (Wyo.1980)). “This type of damage

relates to daily life activities that are common to most people.” Id. at 716 (citing Nemmers

v. United States, 681 F. Supp. 567, 575 (C.D. Ill. 1988); Dyer v. United States, 551 F. Supp.

1266, 1281 (W.D. Mich. 1982); Sweeney v. Car/Puter Int’l Corp., 521 F. Supp. 276, 288

(D.S.C. 1981)).

Here, Gerald Riley testified that, since the shooting incident, he has to rest more often when

lifting heavy furniture, cannot play guitar nearly as long as he used to, and he cannot sit as

long without feeling antsy and experiencing leg cramps. Tanya Riley testified that she has

observed that her husband has increased agitation and less patience, that he sometimes rolls

over in bed and moans from the pain, and that he is inhibited from picking up his young

children because it hurts his wrist. Son Hunter Riley testified that his father cannot run as

well when playing with his children.

Clearly this testimony is material evidence to support an award of damages for loss of ability

to enjoy life in some amount. The question becomes whether the jury’s verdict of $50,000

for this element of damages is excessive, such that a remittitur is warranted.

Considering the evidence supporting the $50,000 award for loss of enjoyment of life, we

must determine whether this figure is within the range of reasonableness:

There is no exact yardstick, or measurement, which this court may use as a

guide to determine the size of verdicts which should be permitted to stand in

cases of this kind. Each case must depend upon its own facts and the test to

be applied by us is not what amount the members of the court would have

awarded had they been on the jury, or what they, as an appellate court, think

should have been awarded, but whether the verdict is patently excessive.

Ellis v. White Freightliner Corp., 603 S.W.2d 125, 129 (Tenn. 1980) (quoting S. Ry. Co. v.

Sloan, 407 S.W.2d 205, 211 (Tenn. Ct. App. 1965)). In this case, the trial judge heard the

testimony, considered Orr’s motion for a new trial, and specifically approved the jury’s

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verdict. This fact informs our review of whether the appellate court should order a remittitur

as to the award for past loss of enjoyment of life:

[A]n appellate court must not only have great respect for the verdict of the

jury, it must likewise take into consideration the fact that the Trial Judge,

experienced in observing persons testifying, is in a better position to determine

whether a party who has been injured is exaggerating the result of such injury

to his body, either from some psychological reaction or purposely in order to

influence the jury verdict, . . . and the appellate courts must likewise have great

respect for the evaluation of damages fixed by the Trial Judge or approved by

him as relates to the verdict.

Stark v. Yost, 334 S.W.2d 954, 958-59 (Tenn. Ct. App. 1959). Recognizing that “there is no

mathematical rule” in computing damages of this nature, considering the evidence overall,

we conclude that the award of $50,000 is within “the upper limit of the range of

reasonableness.” Stark, 334 S.W.2d at 957; Ellis, 603 S.W.2d at 129. Therefore, we decline

to order a remittitur as to this award.

Orr next contends that the $35,000 award for Gerald Riley’s emotional injury is not

supported by material evidence because there is no proof of “serious” or “severe” emotional

injury. Orr argues that Gerald Riley’s testimony about feeling aggravated and impatient

cannot support an award for serious or severe emotional injury. In response, Riley contends

that the testimony shows he cannot adequately cope with the emotional repercussions of the

incident. He points to testimony of Tanya and Hunter Riley that he withdraws from family

activities and engages in “single activities.” He also points to Counselor Harris’s testimony

that he exhibits symptoms of stress and anxiety and that the incident has caused “significant

impairments” in his daily life.

“ ‘[S]erious’ or ‘severe’ emotional injury occurs ‘where a reasonable person, normally

constituted, would be unable to adequately cope with the mental stress engendered by the

circumstances of the case.’ ” Id. (citing Rodrigues v. State, 472 P.2d 509, 520 (Haw. 1970);

Paugh v. Hanks, 451 N.E.2d 759, 765 (Ohio 1983); Plaisance v. Texaco, Inc., 937 F.2d

1004, 1010 (5th Cir.1991); Prosser and Keeton on the Law of Torts § 54, at 364-65, n. 60).

As noted above, Harris testified that Gerald Riley’s emotional condition did not meet the

criteria for a condition recognized in the Diagnostic Statistical Manual; her strongest

statement was that Gerald Riley exhibited stress and anxiety that was a “significant

impairment.” Riley and his family could say only that he exhibited increased agitation and

impatience, and more often engaged in solitary activities. Overall, we must conclude that

this testimony does not rise to the level of evidence demonstrating a “severe” or “serious”

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emotional injury. Thus, we must find that the jury’s award of $35,000 for emotional injury

is not within “the range of reasonableness.” Stark, 334 S.W.2d at 957. We conclude that the

evidence in the record on Gerald Riley’s emotional distress would support an award of no

more than $5000.

Finally, Orr contends that the $1000 award for Hunter Riley’s emotional injury is excessive

and not supported by any medical or scientific evidence demonstrating a “serious” or

“severe” emotional injury. Orr points to Counselor Harris’s testimony that Hunter Riley “did

not report any clinically significant impairment.” In response, Gerald Riley contends that the

proof taken as a whole shows the severity of Hunter Riley’s emotional injury.

To recover damages for emotional injury, “a plaintiff who has not suffered a physical injury

must demonstrate through expert medical or scientific proof that he or she has suffered a

‘severe’ emotional injury.” Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 528 (Tenn.

2008) (citing Camper v. Minor, 915 S.W.2d 437, 446 (Tenn. 1996)). It is undisputed that

Hunter Riley was not struck by Orr’s shotgun blast, and thus expert medical or scientific

proof must be submitted in support of his claim for emotional injury. Finding none in the

record, we must conclude that there is no material evidence supporting the jury’s award for

Hunter Riley’s emotional injury.

CONCLUSION

In sum, we find no reversible error in the jury instructions and the verdict form, and decline

to order a new trial on this basis. As to the jury’s award of damages to Gerald Riley for

future medical expenses, we find that there is material evidence in the record to support an

award of no more than $2250, and therefore suggest a remittitur of $5750. As to the award

to Gerald Riley for emotional injury, there is material evidence in the record to support an

award of no more than $5000, and we therefore suggest a remittitur of $30,000. The award

to Hunter Riley for emotional injury is not supported by material evidence of “serious” or

“severe” emotional injury, and is therefore vacated. The remainder of the jury’s verdict is

affirmed. The cause must be remanded for further proceedings as to whether the Plaintiffs

shall accept the remittitur or have a new trial. See T.C.A. § 20-10-103 (2009).

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The judgment of the trial court is affirmed in part, vacated in part, and remittitur is suggested,

as set forth above, and the cause is remanded for further proceedings consistent with this

Opinion. The costs of this appeal are taxed one-half to the Defendant/Appellant James Orr,

and his surety, and one-half to the Plaintiffs/Appellees Bobby Gerald Riley and wife, Tanya

Riley, Individually and as next of kin for Hunter Riley, for which execution may issue if

necessary.

_________________________________

HOLLY M. KIRBY, JUDGE

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